Petition for Review.
Case: Verizon Telephone Companies and Verizon Internet Solutions d/b/a Verizon.net v. FCC.
Re: FCC Declaratory Ruling that Cable Modem Service is an Information Service.
Court: U.S. Court of Appeals for the District of Columbia.
Case Number: No. 02-1100.
Date: March 25, 2002.
Source: Tech Law Journal transcribed from the original in the Court's file. The original also included a clerk's stamp stating that it was filed on March 25, 2002.

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR REVIEW

The Verizon Telephone Companies and Verizon Internet Solutions d/b/a Verizon.net ("Petititioners)1 hereby petition the Court, pursuant to 47 U.S.C. S 402(a); 28 U.S.C. §§ 2342(1) and 2344, and Rule 15(a) of the Federal Rules of Appellate Procedure, for review of the final order of the Federal Communications Commission (the "Commission" or the "FCC"), captioned In the Matter of Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CS Docket No. 02-52, FCC 02-77 (rel. Mar. 15, 2002) (Declaratory Ruling and Notice of Proposed Rulemaking) (the "Declaratory Ruling"). A copy of the full text of the Declaratory Ruling is attached as EXHIBIT B to this Petition for Review. The Declaratory Ruling was released and took effect on March 15, 2002. See Declaratory Ruling ¶ 133 (ordering clause).

Venue is proper in this Court pursuant to 28 U.S.C. § 2343.

The Declaratory Ruling reached a final determination to classify high-speed Internet access service offered over cable systems ("cable modem service") as an interstate information service. See Declaratory Ruling at ¶¶ 33-59. It also determined that cable modem service does not contain a telecommunications service that is subject to regulation on a common carrier basis, see id. at ¶¶ 3, 34, 48-59, and is not subject to the FCC rules that apply to wireline telephone companies that provide functionally equivalent high-speed Internet access services over their facilities. See id. at ¶¶ 42-47.

The Declaratory Ruling thus classifies cable modem service in a radically different manner from functionally equivalent high-speed Internet access services offered by telephone companies and their affiliated ISPs, such as Petitioners here. The Declaratory Ruling also exempts cable modem service from numerous regulatory requirements and burdens that apply to functionally equivalent high-speed Internet access services offered by telephone companies and their affiliated ISPs. While in separate proceedings the Commission has sought comment on potential changes in the ongoing regulatory treatment of high-speed Internet access service offered by telephone companies, its current rules impose burdens that cable companies are shielded from as a result of the Declaratory Ruling. Petitioners participated in the proceedings before the FCC in this matter and are aggrieved by the FCC's Declaratory Ruling within the meaning of 28 U.S.C. § 2344.

Petitioners respectfully submit that the Declaratory Ruling's differential treatment of equivalent parties provided by cable companies and telephone companies violates the First and Fifth Amendments of the United States Constitution, the Communications Act of 1934, as amended, is arbitrary, capricious and a abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and is otherwise contrary to law.

For these reasons, petitioners respectfully request that this Court hold unlawful, vacate, enjoin, and set aside the Declaratory Ruling, and provide such additional relief as may be appropriate.

Respectfully submitted,

Footnote

1 The Petitioners are local exchange carriers that provide high-speed Internet access through digital subscriber line technologies ("DSL") and an Internet Service Provider ("ISP") that provides online news, entertainment, and services such as electronic mail to DSL subscribers. The Verizon Telephone Company Petitioners are listed in Exhibit A. The Corporate Disclosure Statement required by Rule 26.1 of the Federal Rules of Appellate Procedure and D.C. Cir. Rule 26.1 is attached hereto as EXHIBIT C.